Ryan International School ... vs Director Of Education & Ors.
2013 Latest Caselaw 3543 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 3128/2011
%                                                           12th August, 2013

RYAN INTERNATIONAL SCHOOL EMPLOYEES WELFARE
ASSOCIATION & ORS.                    ..... Petitioners

                          Through:       Mr. Rohit Dhingra, Adv.

                          versus

DIRECTOR OF EDUCATION & ORS.                                ..... Respondents

Through: Mr. Atul Kumar, Adv. for R-2.

Mr. Ashok Bhasin, Sr. Adv. with Mr. Jaideep Bedi, Mr. Sunklan Porwal and Mr. Anubhav, Advocates for R-3.

Ms. Anjana Gosain, Adv. for R/GNCT CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The employees of respondent no.3-school have filed this writ petition

through their association impugning the show-cause notices dated 29.4.2011.

This show-cause notice reads as under:-

        "RIS-TY/ADMIN/2011/1817                Date 29-04-2011
        To
        MS. SHOBITA MATHUR
        29, KIRAN VIHAR,


           DELHI 110092
          MS. SHOBITA MATHUR

               Sub: Absence from duty-Show Cause Notice.

As you are aware, 28th April, 2011 was a normal working day in the school and all teachers were required to be present for duty until leave had been applied for and got sanctioned in advance. However, we regret that despite full knowledge of the fact that all the teachers are required to attend duty on 28th April, being a working day, you have in a collective and concerted manner along with other teachers, chosen to remain absent from duty on 28th April, 2011, without any cause. This absence from duty without any information or prior sanction is illegal and unauthorized. Due to your collective unauthorized absence along with other teachers the work of School and studies of students has suffered immensely. You had no bonafide reason to remain away from duty. By collectively remaining absent from duty you have hampered the academic curriculum and attempted to over-awe the management and undermine its authority and have displayed patently irresponsible behavior and conduct.

Please note that since you have remained absent from duty on 28th April 2011, you shall not be entitled to any salary for the said date. Further, as per the provisions of the Service Rules applicable to you, if ten or more employees acting in concert absent themselves from duty without any cause, they will be liable to deduction of upto 8 days of salary. Since you have unauthorisedly absented from duty in concert with other teachers, without any cause, you are hereby advised to show cause as to why 8 days salary be not deducted from your salary for the month of April 2011. Your reply should be received in the School Office within 3 days from today failing which it will be presumed that you have nothing to say in the matter and the management shall proceed to take further action in the matter."

2. The show-cause notice therefore shows that the teachers and

employees of the petitioner absented themselves from duty and therefore the

show-cause notice was issued.

3. I have put a suggestion to learned senior counsel for respondent no.3-

school, who very graciously accepts the position that in case all the

employees who have been issued a show-cause notice give an undertaking to

the respondent no.3-school within a period of four weeks from today that

they will not in future resort to the acts of indiscipline as stated in the show-

cause notice, then, show-cause notice will be withdrawn. In case however

the employees who have been issued a show cause notice do not give these

undertakings as stated above, then enquiry proceedings against them will

continue.

4. The law with respect to staying of enquiry proceedings is well settled

and the Supreme Court has now consistently held that enquiry proceedings

cannot be stayed unless there is an issue of lack of jurisdiction. The

Supreme Court has said that truth and falsity of allegations have to be

decided by the Enquiry Officer and not by the Court. I have had an occasion

to consider this aspect in the judgment in the case of Dr. Muhammad Iqbal

Vs. Union of India & Ors. in W.P.(C) No. 4222/2013 decided on 8.7.2013.

The relevant paras of the said judgment are paras 3 to 5 and which read as

under:-

"3. The Supreme Court in the case of State of Uttar Pradesh Vs. Brahm Datt Sharma and Anr. (1987) 2 SCC 179 has held the following in para 9 of its judgment:-

"9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the

government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature. The High Court in our opinion ought not have interfered with the show cause notice." (underlining added) A reference to the aforesaid para shows that truth or falsity of the allegations cannot be determined by a Court before whom enquiry proceedings are challenged at the outset and an entitlement to challenge the enquiry proceedings arises only when there is found lack of jurisdiction.

4. The Supreme Court in its recent judgment in the case of Secretary, Ministry of Defence and Ors. Vs. Prabhash Chandra Mirdha 2012 (11) SCC 565 has similarly so held by referring to various earlier judgments including the judgment in the case of Brahm Datt Sharma (supra). Paras 10 to 12 of the said judgment read as under:-

"10. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide; State of U.P. v. Brahm Datt Sharma, Bihar State Housing Board v. Ramesh Kumar Singh, Ulagappa and Ors. v. Div. Commr., Mysore and Ors., Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. and Union of India and Anr. v. Kunisetty Satyanarayana).

11. In State of Orissa and Anr. v. Sangram Keshari Misra (SCC pp. 315-16, para 10) this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. (See also Union of India v. Upendra Singh).

12. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings." (underlining added)

5. It is therefore clear that a Court can only interfere with continuation of enquiry proceedings when there is complete lack of jurisdiction in holding of the enquiry proceedings by the authority which is holding the enquiry, or because the authority did not have the power to initiate the enquiry or the enquiry may be barred by principle of res judicata or double jeopardise or that on the face of the show cause notice even if facts are accepted as correct no charges are made out or there is no cause of action or no violation of any law or rules etc etc."

5. In the present case, I do not find that there is any issue of lack of

jurisdiction in issuing of show-cause notice, and therefore, issues of merits

will have to be decided in the enquiry proceedings if they become necessary

if the employees of the respondent no.3-school who have been issued the

show-cause notice do not file an undertaking in terms of the today's

judgment. General allegations of lack of jurisdiction as pleaded do not make

out a case as how specifically and exactly there is no jurisdiction in the

authority which has issued the show-cause notices.

6. The writ petition therefore will stand dismissed so far as the issue of

challenge to the show-cause notice is concerned subject to the above

observations of the show-cause notices being withdrawn on the undertakings

being filed.

7. On the aspect of respondent no.3 violating any provisions of the Delhi

School Education Act and Rules, 1973 the present writ petition is treated as

a representation to the respondent no.1 so far as those employees who are

governed by the Delhi School Education Act are concerned. The petition is

accordingly disposed of with the direction that the writ petition is treated as

a representation to the respondent no.1, and the respondent no.1 after

hearing the employees or their representative, will pass speaking orders in

accordance with law. Communication to the employees of the school in

Delhi and who are the members of the petitioner No.1 will be through their

Advocate in this writ petition. A speaking order be passed by the

appropriate authority in the Directorate of Education on the representation

within a period of three months of receipt of a copy of today's judgment. I

may note that some of the employees of the respondent no.3-school are not

governed by the Delhi School Education Act and Rules, because they are

employees of schools outside Delhi. Such employees therefore will not be

governed by the Delhi School Education Act and Rules, 1973.

8. The writ petition is therefore dismissed so far as the same challenging

the show-cause notice is concerned, subject of course to the proceedings

coming to an end on the employees giving the aforesaid undertaking within

a period of four weeks. The writ petition is disposed of so far as the other

reliefs with the direction to the respondent no.1 to decide grievance as stated

in the writ petition in accordance with law. Parties are left to bear their own

costs. All pending applications stand disposed of accordingly.

AUGUST 12, 2013                               VALMIKI J. MEHTA, J.
ib